Felony: 24 & 25 Vict. c. 100, s. 61. For punishment, see notes to the last precedent. The defendant may upon this indictment be convicted of an attempt to commit the felony charged, if the evidence warrant such finding. 14 & 15 Vict. c. 100, s. 9 (ante, p. 219). An indictment for an attempt to commit this offence may readily be framed from this and the next precedent. It is punishable in the same manner as the attempt to commit sodomy. 24 & 25 Vict. c. 100, s. 62, infra. See R. v. Mulreaty, ubi supra. There is no statutory time for prosecuting the offence, but delay in prosecution has been made a ground for directing acquittal. R. v. Robins, 1 Cox, 114. This offence is not triable at quarter sessions. 5 & 6 Vict. c. 38, s. 1 (ante, p. 126). Evidence. Prove the carnal knowledge as in rape or sodomy, ante, pp. 911, 923. ASSAULT WITH INTENT TO COMMIT SODOMY AND ACTS OF GROSS INDECENCY BETWEEN MALE PERSONS. Statute. 24 & 25 Vict. c. 100 (Offences against the Person Act, 1861), s. 62.]— Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable. . . to be kept in penal servitude for any term not exceeding ten years. [The italicized parts of this section were new in 1861.] 43 & 44 Vict. c. 45, s. 2—Consent of male person under thirteen to indecent assault no defence.]-Ante, p. 918. 48 & 49 Vict. c. 69 (Criminal Law Amendment Act, 1885), s. 11-Acts of gross indecency by male person with another male person.]-Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labour. [This enactment covers such cases as R. v. Jacobs, R. & R. 331, ante, p. 924, post, p. 927. For indictment, see post, p. 927.] Sect. 17-Misdemeanors under this Act to be within Vexatious Indictments Act-Indictment under this Act not triable at quarter sessions.]—Ante, p. 902. Sect. 18-Costs of prosecution.]—Ante, p. 902. Sect. 20-Person charged and husband or wife of person charged to be competent but not compellable witnesses.]—Ante, p. 906. 61 & 62 Vict. c. 36, ss. 1, 4, sched.]-See ante, pp. 392–398. 4 Edw. 7, c. 15, ss. 12-18, and sched. 1-Procedure and evidence in offences under 24 & 25 Vict. c. 100, s. 62, and 48 & 49 Vict. c. 69, s. 11, against a child under sixteen.]-Ante, pp. 882-885, 887. Indictment for attempt to commit Sodomy.. (24 & 25 Vict. c. 100, s. 62.) Commencement as ante, p. 913]-in and upon one J. N. did make an assault, and him the said J. N. did then beat, wound, and ill-treat, with intent that detestable and abominable crime (not to be named among Christians) called buggery, with the same J. N., feloniously, wickedly, diabolically, and against the order of nature, to commit and perpetrate; against the form [as ante, p. 840]. Misdemeanor: penal servitude for not more than ten and not less than three years, or imprisonment, with or without hard labour, not exceeding two years. 24 & 25 Vict. c. 100, s. 62; 54 & 55 Vict. c. 69, s. 1, sub-ss. 1, 2 (ante, p. 235). As to fining the offender and requiring him to enter into recognizances and find sureties for keeping the peace and being of good behaviour, 24 & 25 Vict. c. 100, s. 71 (ante, p. 778). Evidence. Prove an attempt to commit sodomy, the offence being incomplete for want of evidence of penetration (ante, p. 923). If the complete offence of sodomy be proved, it seems that the defendant will not be entitled to be acquitted; but the judge may, if he think fit, discharge the jury, and direct the defendant to be indicted for the felony. 14 & 15 Vict. c. 100, s. 12 (ante, p. 218). Where the defendant was indicted under this section (24 & 25 Vict. c. 100, s. 62), for an indecent assault upon a male person, and it appeared that the person alleged to have been assaulted consented to what was done to him by the defendant, it was held that the indictment could not be sustained. R. v. Wollaston, 12 Cox, 180 (C. C. R.). Mere submission, however, is not consent, and therefore, where two boys of eight years of age submitted to indecent acts on the part of a man, in ignorance of the nature of the acts done, the man was held to be rightly convicted of an indecent assault, on the ground that the boys, being thus ignorant, could not be held to have consented in the true meaning of that word. R. v. Lock, L. R. 2 C. C. R. 10; 42 L. J. (M. C.) 5. And consent is now no defence to an indictment for an indecent assault, where the person assaulted is under the age of thirteen years. 43 & 44 Vict. c. 45, s. 2 (ante, p. 918), and it is therefore now unnecessary in such cases to consider the distinction between mere submission and consent drawn in R. v. Wollaston and R. v. Lock, ubi supra. The unsworn evidence of a boy too young to understand the nature of an oath is rendered admissible on a charge for this offence by 4 Edw. 7, c. 15, s. 15, and sched. 1 (ante, pp. 883, 887), which overrule R. v. Beer, 62 J. P. 120. Such evidence must be corroborated. An indictment against two persons, which charged that they, being persons of wicked and unnatural dispositions, did in a certain open and public place unlawfully meet together, with the intent of committing with each other, openly, lewdly, and indecently, in the said public place, divers nasty, wicked, filthy, lewd, beastly, unnatural, and sodomitical practices, and then and there unlawfully, wickedly, openly, lewdly, and indecently did commit with each other, in the sight and view of divers liege subjects, etc., divers such practices as aforesaid, etc., was held bad in arrest of judgment for want of certainty. R. v. Rowed, 3 Q. B. 180; 2 G. & D. 518; 11 L. J. (M. C.) 74. The practices proved in this case and R. v. Wollaston (supra), and R. v. Jacobs, R. & R. 331 (ante, p. 924), seem to be within 48 & 49 Vict. c. 69, s. 11 (ante, p. 925). As to attempts to commit bestiality, which are within 24 & 25 Vict. c. 100, s. 62, see ante, p. 925. As to conspiracy or incitement to commit sodomy, etc., see R. v. Boulton, 12 Cox, 87. As to threats to accuse of these offences, see ante, p. 521, et seq. Indictment for Indecent Assault on a Male. (24 & 25 Vict. c. 100, s. 62, ante, p. 925.) The indictment may be in the same form as that on p. 919, with the substitution of the words a certain male person." If the indictment be for an indecent assault, one or other of the preliminary steps required by 22 & 23 Vict. c. 17, s. 1, as extended by 30 & 31 Vict. c. 35, s. 1, must be taken (see ante, p. 7). Punishment: see the last precedent. Indictment for Misdemeanor under 48 & 49 Vict. c. 69, s. 11. ... (Ante, p. 925.) Commencement as ante, p. 913]-being a male person, unlawfully did commit an act of gross indecency with another male person, to wit, C. D.; against the form of, etc. [as ante, p. 840]. (2nd Count)—Same as first count, but charging C. D. with committing, etc., with A. B. (3rd Count)- that the said A. B. on the day aforesaid, in the year aforesaid, being a male person, unlawfully did procure the commission by a male person, to wit, the said C. D., of an act of gross indecency with another male person, to wit, with him, the said A. B.; against the form of, etc. (as ante, p. 840). Counts for an indecent assault or an attempt to commit sodomy may be joined. No indictment can be preferred for this offence unless the preliminary steps required by 22 & 23 Vict. c. 17, s. 1, as extended by 30 & 31 Vict. c. 35, s. 1 (ante, p. 7, et seq.), have been taken. 48 & 49 Vict. c. 69, s. 17 (ante, p. 902). Misdemeanor: imprisonment for any term not exceeding two years, with or without hard labour. 48 & 49 Vict. c. 69, s. 11 (ante, p. 925). This offence is not triable at quarter sessions. 48 & 49 Vict. c. 69, s. 17 (ante, p. 902). Evidence. It is an offence within 48 & 49 Vict. c. 69, s. 11, for a male person to procure the commission with himself of an act of gross indecency by another male person. R. v. Jones [1896] 1 Q. B. 4 (C. C. R.); 18 Cox, 207. The unsworn evidence of a child under sixteen is now admissible on a charge under this section, but must be corroborated. 4 Edw. 7, c. 15, s. 15, and sched. 1 (ante, pp. 883, 887). PART II. OFFENCES OF A PUBLIC NATURE. CHAPTER I. OFFENCES AGAINST THE CROWN AND GOVERNMENT. SECT. 1. High Treason, p. 928. 2. Treason Felony, p. 948. 3. Attempts to injure or alarm the Sovereign, p. 951. 4. Offences against the Foreign Enlistment Act, p. 953. 5. Coinage Offences, p. 959. 6. Sedition, p. 986. 7. Administering unlawful Oaths, p. 999. 8. Inciting to Mutiny, p. 1004. 9. Illegal Training and Drilling, p. 1006. 10. Offences relating to Public Stores, p. 1008. 11. Disclosure of Government Secrets, p. 1011. 12. Misconduct by Executive and Administrative Officials of the 13. Concealment of Treasure Trove, p. 1015. SECT. 1. HIGH TREASON. Statutes. 25 Edw. 3, st. 5, c. 2 (Treason Act, 1351)-Declaration of Treasons (as printed in Revised Statutes, 2nd edition).]—Item, whereas divers opinions have been before this time in what case treason shall be said, and in what not; the king, at the request of the lords and of the commons, hath made a declaration in the manner as hereafter followeth, that is to say; when a man doth compass or imagine the death of our lord the King, or of our lady his Queen, or of their eldest son and heir; or if a man do violate the King's companion, or the King's eldest daughter unmarried, or the wife [of] the King's eldest son and heir; or if a man do levy war against our lord the King in his realm, or be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, and thereof be probably ("provablement") attainted of open deed by the people of their condition. [as to counterfeiting the king's seals or coin (rep.), 11 G. 4 & 1 W. 4, c. 66; 2 & 3 W. 4, c. 34, s. 1]; and if a man slea (sic) the chancellor, treasurer, or the king's justices of the one bench, or the other (see Steph. Dig. Cr. L. (6th ed.) 45, n.) justices in eyre or justices of assise, and all other justices assigned to hear and determine, being in their places doing their offices: and it is to be understood that in the cases above rehearsed, that ought to be judged treason which extends to our lord the king and his royal majesty and of such treason the forfeiture of the escheats pertaineth to our sovereign lord as well of the lands and tenements holden of other as of himself. (As to forfeitures, see now 33 & 34 Vict. c. 23, s. 1, post, p. 936; as to petty treason, see 24 & 25 Vict. c. 100, s. 8, ante, p. 776.) And because that many other like cases of treason may happen in time to come, which a man cannot think nor declare at this present time; it is accorded that if any other case, supposed treason, which is not above specified, doth happen before any justices, the justices shall tarry without any going to judgment of the treason, till the cause be showed and declared before the king and his parliament, whether it ought to be judged treason or other felony. And if per-case any man of the realm ride armed overtly (see 2 Steph. Hist. Cr. L. 269) or secretly with men of arms against any other, to slay him, or rob him, or take him, or retain him till he hath made fine or ransom for to have his deliverance, it is not in the mind of the king nor his council that in such case it shall be judged treason, but shall be judged felony or trespass according to the laws of the land of old time used, and according as the case requireth. [Rest rep. 50 & 51 Vict. c. 53, s. 3 (Stat. Law Revision). This statute was passed after petition by the Commons to the king representing that certain justices had lately given judgment in their courts for treason and accroachment of royal power, and praying that it might be declared in parliament to what cases this accroachment of royal power extended (2 Rot. Parl. 166, n. 15; Rot. Parl. 25 Ed. 3, p. 2, n. 17; Luders on High Treason, p. 11; 1 Hale, 86, 87; 1 East, P.C., 37; 2 Chit. Cr. L. 60). It is said to be declaratory of the common law (3 Co. Inst. 1; Sindercombe's case, 5 St. Tr. 848: R. v. Smith O'Brien, 7 St. Tr., N. S. 349, 397; 2 H. L. C. 465; 3 Cox, 360, Blackburne, L.C.J.; 2 Steph. Hist. Cr. L. 243). ... Elsewhere:" that is, out of the realm of England. The realm of England comprehends the narrow seas and Wales, but not Ireland (Lord McGuire's case, 4 St. Tr. 653), nor Scotland, nor the Channel Islands (1 Hale, 153, 154). The operation of this statute was extended to Ireland by Poyning's Act (10 11.7, c. 22, Ir.): see R. v. Smith O'Brien, supra; and to Scotland by 7 Anne, c. 21, s. 1, which superseded the Scots law relating to offences which in England amount to high treason. Id., s. 10.] 11 H. 7, c. 1, s. 1.]—Service in war under the king de facto for the time being not to be deemed treason against the king de jure. [See Steph. Dig. Cr. L. (6th ed.); 2 Steph. Hist. Cr. L. 254.] 28 II. 8, c. 15, ss. 1-3.]-Treasons in admiralty jurisdiction to be tried in England and punished as if committed on land. (Ante, pp. 39-43.) 35 H. 8, c. 2, s. 1-Venue for treasons committed abroad.]-Forasmuch as some doubts and questions have been moved, that certain kinds of treasons, misprisions, and concealments of treason done, perpetrated, or committed out of the king's majesty's realm of England cannot ne (sic) may by the common laws of this realm be inquired of, heard, and determined within this his said realm of England: for a plain remedy, order, and declaration therein to be had and made, be it enacted by authority of this present parliament that all manner of offences being already made, declared, or hereafter to be made or declared, by any the laws and statutes of this realm, to be treasons, misprisions of treasons, or concealments of treasons, and done, perpetrated, or committed, or hereafter to be done, perpetrate, or committed, by any person or persons out of this realm of A.C.P. 59 |